I haven’t seen this topic dicussed in GD for a while and figured that this ruling was a good enough reason to bring it up.
Jist of the ruling is, "Can’t discriminate based on procreation arguments, can’t discriminate based on tradition, “seperate but equal” isn’t good enough, etc. "
So, are there any other arguments that can be used for a gay marraige ban?
Please limit your attempts to reasonably rational, logical, and defensible arguments because they will be analysed.
I really think it’s a mistake to make this a constutiional issue, because the sentiment across most of the country is such that if it takes a constutional amendment to ban SSM, either at the state or federal level, then that’s what will happen.
“5/8th of a person” was never constitutional, but “3/5ths of a person” absolutely was. Anti-miscegination laws were never part of the constitution, but they could have been made part of it had it come to a vote.
Sad, but a fact that shouldn’t be ignored. How many times have anti-SSM laws or amendments come to a vote in the US and NOT been passed? I can’t think of one instance.
Yes, but if the will of the people is expressed in two-thirds of the House and the Senate proposing an amendment to the constitution that forbids same-sex marriage, and three-fourths of the states ratify this, it will be perfectly constitutional.
It’s not wise, I grant you. But it’s a predictable backlash against the spectre of the courts making laws not supported by the will of the people.
How many states now have anti-SSM constitutional amendments?
Can you clarify this for me? I keep hearing about “activist judges” and “legislation by judicial fiat” and the like, but don’t really quite get it. Aren’t the judges simply making rulings on the constitutionality of specific laws and the like? Isn’t that their job?
For some reason, Rick, who used to be very competent at explaining this stuff, has suddenly decided to take refuge in the “appointed judges making laws” canard, which he knows better than to do.
It has been so argued on numerous occasions and there are still people who are mad about it for that reason.
There are at least three ssues here:
Is Same Sex Marriage right or wrong?
Should the issue be decided by courts or legislatures?
What happens if some majority of people feel that the court decisions are improper and force through a Constitutional Amendment banning SSM?
The first is an ethical question.
The second is a philosophical issue.
The third is an issue of political strategy.
Far too many people who champion one decision or another on issues 1 and 2 fail to recognize that a “victory” for the courts on issue 2 could lead to a backlash that could result in a “loss” on issue 3.
Keeping a recognition of the actual issues separate just might permit persons on the same side on issue 1 from coming to blows over misperceptions regarding issues 2 and 3.
Or not.
No. Because in Brown, the Supreme Court was working within the historical context of the Fourteenth Amendment, which was passed to prevent invidious racial discrimination. The Fourteenth Amendment was meant to apply to racial discrimination. It’s not activist to interpret it in that light.
I do, eh?
When a judge decides that a particular method of searching is reasonable or unreasonable, he is doing his job - interpreting the words of the Constitution. When a judge uses the words of the Constitution to create a result manifestly not intended by the authors, he is intruding upon the province of the legislature.
When a judge finds that there is a due process requirement for the government to permit same-sex marriage, he is stretching the language of the Due Process clause. When a judge interprets a particular search as being reasonable, he is simply using the words of the Fourth Amendment.
Are you saying anyone who does not agree with SSM has a bigoted hated of gays? Seems a bit simplistic to me. People dont like things, all kinds of things for all kinds of reasons. To lump all of them together seems sophomoric.
Bricker:But it’s a predictable backlash against the spectre of the courts making laws not supported by the will of the people.
But isn’t that phrase “the will of the people” kind of dodging the issue? I mean, if “the people” can’t come up with a justification that will pass judicial scrutiny, then why should the law endorse their “will”? John:I really think it’s a mistake to make this a constutiional issue
How is it being “made” a constitutional issue? Isn’t a law about the right to marry intrinsically a constitutional issue?
Maybe what you mean is that you think it’s a mistake not to ignore the constitutional issue involved by refraining from challenging such laws in court?
Bricker:Does the distinction make sense?
Not really, not to me at least. It just seems to me that one person’s “interpretation” is another person’s “stretched language”, and there’s no clear way to distinguish between “interpreting” the laws and “creating unintended results” from them.
Couple of things here. First, I hope that my earlier post was not interpreted as taking a pot shot at you. I am 100% sincere in trying to understand this point of vied. Which brings me to my next point. I still don’t.
It is my understanding that in California (most recently) and in other states (Vermont and Massachusetts that I can think of off the top of my head) that the case is that individual citizens were bringing matters such as the Defense of Marriage act to the courts specifically to determine if they were constitutional. Assuming that I am not wrong about that, I don’t see how the court is legislating anything. Aren’t they simply ruling that a given law is or is not constitutional?
I’m confused how this can be seen as a non constitutional issue. We’re talking about one group of people who are granted rights by the state to marry the person of their choice, and one group of people who are not granted that right.
Pardon me if this has been asked in GD or GQ before, but if a law says that one person may marry the person of his/her choice, but another may not, how does it not violate the 14th amendment?
I’m not very knowledgeable on the legal matters, but if a state passes a law discriminating against gays isn’t that “due process of law”? Then again, usually when I see that it means a trial, but hey…
Because the only other solution is having the law endorse the will of the minority. The majority doesn’t need a reason, they just need to vote. It might not always produce the best result, but there isn’t a good system that I can think of that would require them to have a reason. Perhaps we can consider the super majority necessary for a federal constitutional amendment to be a built-in mechanism to minimize capricioius majority rule, but it can’t ELIMINATE the problem altogether.
Poor wording on my part. I should have said FORCE this as a constitutional issue. And the reason being that I think supporters of SSM will lose that contest. As I said earlier, everytime the issue has come to a vote, the pro-SSM side has lost.
Unfortunately Bricker, I could buy your arguments if these rulings led to protective legislation against activist rulings_ in general_. But given that they target only gay marriage only (and often even gay partnership period), I don’t buy it that this is just a “larger principle” response.
I agree: trying to win this battle via the courts is a bad idea. It’s not only bad tactically for gay marriage, it’s bad for the country. But that doesn’t mean I’m much impressed with the “oh, we agree it’s wrong, but activist judges!!! blah blah blah” approach either. I don’t believe it’s sincere.